Methods of enforcement — overview

The Family Procedure Rules 2010 offer two routes to enforcement: you can make an application to the court for a specific method, or an application for such method as the court considers appropriate. The rules also provide that an application for enforcement should be accompanied by a statement containing the amount outstanding under the order and details of how that amount was calculated, verified by a statement of truth, if there are no specific rules required by the method of enforcement chosen.

In most cases, the provisions of the Civil Procedure Rules 1998 now apply to enforcement in family proceedings.

Attachment of earnings

This is only of use where the debtor is employed. On an application by a person entitled to receive periodical payments under a periodical payments order or a debtor, an employer may be ordered to deduct a specified amount from the debtor's salary either weekly or monthly and forward it to the court. The amount to be deducted may also include arrears of periodical payments.

You can apply to whichever court is most appropriate. There is a prescribed form of application that must be accompanied by an affidavit. If the application relates to arrears of periodical payments more than 12 months old, an application for leave will also be required. The court will fix a protected earnings rate that will determine how much, if any, will be deducted.

Charging orders

Where an ascertained sum of money is payable under an order, the court can make an order placing a charge on a fund or property (which includes land or an interest in a trust, and securities) belonging to the debtor. It provides security rather than immediate recovery. The choice of court depends upon where the order was originally made, the type of order and the amount.

It is a two-stage application, the initial application being ex parte. If the court is satisfied on the evidence, an order will be made for the debtor to show cause why an order should not be made absolute. A charging order against land is registered. There is a requirement to send notices to persons with a beneficial interest in the property.

A charging order may be enforced by sale, depending on the debtor's interest in the land.

Stop orders and stop notices

A charging order can be made over securities, including stocks and shares. Stop orders prevent the registration of transfers of, and payment of dividends in respect of, securities that are subject to charging orders. A stop notice requires that notice be given to the applicant before such steps are taken.

Third party debt orders

The purpose of a third party debt order is to obtain payment of monies due under a judgment or order, such as arrears of maintenance or a lump sum, from monies owed by a third person or firm to the debtor or held by that third person on behalf of the debtor, eg a bank account.

The proceedings are governed by the Civil Procedure Rules 1998. The application is in two stages: first, to obtain an without notice interim order which requires the debtor to show why the debt should be attached; and secondly, a hearing on notice for a final third party debt order.

Judgment summons

A judgment creditor may make an application for a judgment debtor to attend court and for the debtor's committal to prison for up to six weeks or until payment of the sum owing, if he can prove that the debtor has had the means to pay and has refused or neglected to do so. Any order made in family proceedings for the payment of money may be enforced in this way. The terms of the order to be enforced have to be clear, ie that payment of a specified sum is required within a stated period of time. The proceedings should be issued in the court most convenient to the place where the debtor resides or carries on business. It may be accompanied by an application to enforce arrears of maintenance more than 12 months old. The application must be supported by an affidavit together with any written evidence to be relied upon. The judgment summons must be personally served within the prescribed time limits and the debtor should be given sufficient money to cover reasonable travelling expenses. The standard of proof is the criminal one.

Methods of payments orders

When a periodical payments order is made a means of payment order may be appropriate. This requires the payment to be made by the payer in a particular way, eg by standing order payments into a nominated bank account.

Orders for sale

Where the court in ancillary relief proceedings makes one of a specified range of orders, eg a lump sum order, it may also make an order for sale of such property as may be specified in the order. The court can also order payment out of the proceeds of sale.

If the judgment debtor fails to comply with an order for sale, while an application for endorsement with a penal notice followed by committal proceedings is possible, an alternative is for an application to be made for the district judge or other named person to execute the documents on behalf of the debtor. The original order should be clear as to the obligation and the specified date for compliance.

Receivership

The effect of an application for receivership is to prevent a judgment debtor from receiving certain money due or from dealing with it to the creditor's detriment. The court will have regard to the amount claimed, the amount likely to be recovered and the probable costs of the receiver's appointment.

A receiver may be appointed in both the High Court and the county court, in cases where it is just and convenient to do so and on such terms as the court thinks fit. In enforcement proceedings the receiver's role is to collect the rents, profits or monies recoverable in respect of a judgment debtor's interest in specified property and to pay them to the court or direct to the judgment creditor.

Writ of sequestration

Sequestration is a process for dealing with contempt of court whereby assets of the judgment debtor may be seized and retained until the order is complied with. It is only suitable for certain types of orders and is a complex and expensive procedure. The application is for the sequestrator to take possession of all of the assets of the person against whom the order has been made.

Proceedings may be either in the High Court or the county court, but the High Court is the usual venue. Leave must be obtained to issue a warrant of sequestration in the county court or a writ in the High Court. Application is on a prescribed form and is supported by an affidavit. There are rules requiring personal service and obtaining the consent of the proposed sequestrators. The writ or warrant should be registered at the Land Registry. The debtor may apply to purge their contempt.

Execution against goods

A warrant of execution is a warrant whereby the goods and chattels of a judgment debtor may be seized and sold to satisfy the debt. An affidavit in support of the application is required. There are additional requirements where the order is over six years old.

Writ and warrant of delivery

A writ of delivery in the High Court or a warrant in the county court is an order to the enforcement officer or bailiff physically to take goods from the judgment debtor in order to enforce a property adjustment order or a declaration of title to, and possession of, personal property and to deliver them to the judgment creditor. The order will either be for delivery of goods or payment of their assessed value, or just for the delivery of goods. The procedure differs slightly between courts. In the county court the judgment creditor files a form of request for the issue of a warrant that will be endorsed, with the precise date and time of the request from which the warrant will take priority. A warrant may be stayed.

Writ and warrant of possession of land

A writ or warrant for possession of land may be used to enforce an order that provides for possession of land. Such an order requires the enforcement officer in the High Court and the bailiff in the county court to take possession of land and give it to the judgment creditor. In the High Court leave is generally required before a writ can be issued. In the county court leave is only required if more than six months has elapsed since the order was made or there has been a change of parties. In the county court a form of request for the issue of a warrant must be filed. An endorsed and sealed warrant is delivered to the bailiff for execution.